A while back, I interviewed the philosopher Jessica Flanigan about her views on teaching and research. The interview was part of my series on the ethics of academia. In the midst of that interview, I asked her a question that I asked many of my guests: do you really believe in the ideas/arguments you develop in your research? The particular prompt for that question, in Flanigan's case, was an article she wrote about seatbelt mandates. Seatbelt mandates are laws that make it illegal not to wear a seatbelt. Flanigan, writing from a broadly libertarian perspective, argued that they were unduly paternalistic and, hence, should be revoked. I wondered if she really hoped that policy-makers would take that argument seriously. She said she did.
I didn't ask the question because I doubted her sincerity. I asked it because I sometimes lack confidence in my own arguments and ideas and so I quietly hope that others don't take them too seriously. It was refreshing to talk to someone that apparently backed themselves. Anyway, since I spoke to her, I have used Flanigan's article about seatbelt mandates in several of my classes. I think it is a thought-provoking piece and it's interesting to see what students make of it since the conclusion it defends is so contrary to their own preconceptions and the moral status quo. In my experience, very few students agree with her, but it can be hard for them to pinpoint exactly where her argument goes wrong.
In what follows, I want to analyse and evaluate Flanigan's argument. I will outline its basic structure and consider how Flanigan defends each of the main premises. I will also offer some critical questions and reflections on these defences. This article is based on notes I have prepared for my classes so it may be a bit more disjointed and less conclusive than some of the other pieces on this blog. I tend to raise questions for discussion rather than offer firm opinions of my own. You have been warned.
1. The Basic Structure of the Argument
Flanigan sets out the main argument with admirable clarity. It is syllogistic in form. The major premise (1) states a general normative principle; the minor premise (2) makes a factual claim relating to the conditions stated in the normative principle; the conclusion follows. Here it is:
- (1) If a person’s autonomous choice is not harmful to others, then public officials should not paternalistically use force or threats of force to prevent him/her from making that choice
- (2) Riding in an automobile unbelted is an autonomous choice that is not harmful to others
- (3) Therefore, public officials should not paternalistically prevent people from riding unbelted.
The major premise echoes the Millian Harm Principle -- that the only moral justification for using force or the threat of force is to prevent harm to others -- but Flanigan offers a more elaborate and theoretically pluralist defence of it. She then evaluates three objections to premise (1) and two objections to premise (3).
Before considering each aspect of her defence, it is worth briefly noting that in defending this argument Flanigan has an ulterior motive. She is honest about this in the introduction to her article. As already noted, she writes from a broadly libertarian perspective. This means she is generally opposed to government interventions and regulatory overreach. The argument against seatbelt mandates is a kind of Trojan horse argument. In other words, Flanigan knows that most people agree with seatbelt mandates and that opposing them will seem contrary to common sense. But if she can convince people that they are unjust, then this will make it easier to make the case for other limitations on regulatory interventions. As she puts it herself if "even seatbelt mandates are unjust", whither other forms of paternalistic intervention?
2. The Positive Defence of Premise (1): Against paternalistic intervention
Flanigan offers a pluralistic defence of premise (1). She suggests that it can be supported from different theoretical grounds (both deontological and consequentialist). You can count it up in different ways but, by my reading, she offers a least six lines of argument in support of premise 1.
The first supporting argument is based on Kantian respect for autonomous choice. The idea is that we should each be given the authority to use our autonomous capacities to make decisions about how to live our own lives. This moral principle creates a ‘very strong presumption’ against interference.
Of course, many people don't accept the Kantian view. And, even if they do, they tend to accept that there are limits to the scope of our own autonomy (Flanigan concedes this). The question then becomes: what are they and do seatbelt mandates fall inside or outside those limits?
The second argument is a more constrained version of the first based on respect for autonomous choices relating to bodies. The idea here is that even if you reject the general Kantian view, you probably accept that we have a strong presumptive right to decide what happens to our own bodies. The argument then is that riding unbelted is a decision relating to what happens to our own bodies. Flanigan fleshes this argument out by using some analogies such as base jumping and drinking to excess. If we allow those activities then why not allow riding unbelted? She also uses a thought experiment which is repeated or echoed various times in the article: Imagine someone threatened you for refusing to exercise. Would you accept such a threat? Surely not. So why accept it in the case of a threat if you don't wear a seatbelt.
One danger with this argument is whether it is substantially different from the first one. Since we are embodied beings, virtually all decisions we make affect our bodies in some ways. If so, then it isn't clear that this sets a principled limit that is distinct from general Kantian view? More importantly, however, there is the important question as to whether the decision to ride unbelted is only about what happens to our own bodies. Aren't other people affected by that decision too? In class discussions, this tends to be the biggest stumbling block for students trying to accept Flanigan's argument. For them, the decision to ride unbelted poses risks to others and that's a major reason for seatbelt mandates. Flanigan addresses this counterargument later in her paper and we will consider it in more detail below.
The third argument is that paternalistic policies of this sort are unlikely to promote people’s well-being, at least in the long run. In making this argument, Flanigan offers a major concession: she accepts that seatbelt mandates would probably reduce overall deaths, maybe by up to 3,000 deaths per year in the US (according to a study she cites). But she counters that avoiding death is not the only thing that matters. Individuals are better than public officials to weigh the risk of death against other risks/benefits. Mandates take this choice away from people.
This is a fairly standard libertarian argument and, in many instances, I agree with it. I am not sure that individuals are always the best judge of what is in their own interests, but I agree that in many cases they are no worse than other officials (etc). Still, the plausibility of this argument all boils down to how we draw the lines. Are there not some limits to an individual's determination of what is in their own interest. Do we have a strong right to self-harm? How would the logic here apply to other cases? For example, should we have a right to sell ourselves into slavery? Or should there be a public prohibition against this? If so, then there are limits to what individuals can decide for themselves. And if so, it remains to be determined whether seatbelt mandates fall inside or outside those limits.
The fourth argument is that there are often excessive costs to paternalistic interventions. The potential benefits of seatbelt mandates must be weighed against their likely costs, e.g. the waste of policing resources on enforcement; the administrative costs of the punishment system, and so on.
In my experience, students are often reluctant to accept this argument on the grounds that they are reluctant to put a price on the value of a human life (let alone 3000 of them). But since we do this all the time, there is some merit to the argument. If the economic value of a life is around 10 million dollars (which was a figure I saw cited for 2020) then the seatbelt mandate system must cost less than $30 billion for it to be cost effective (assuming 3000 lives saved). I'm not sure if that is the case, but I suspect it probably is. One danger, as well, with calculating costs in this area would be the risk of double-counting costs. The reality is that seatbelt mandates are likely to be enforced as part of a whole package of road traffic laws (speeding, drink driving, routine stops and checks for licences and registration etc). It might be hard to disentangle the costs and benefits of seatbelt mandates from the costs and benefits of these other laws.
The fifth argument is that the enforcement of such a paternalistic intervention would be inegalitarian. This is, perhaps, the most interesting of Flanigan's arguments. Her claim is that police are more likely to enforce the law on racial minorities and could use the law as a pretext for other interventions (Flanigan cites examples of how fatal shooting of black people arose from routine seatbelt stops). The punishments also impose a disproportionate cost on poor people.
Students in my classes tend to find this argument the most persuasive but then wonder whether this an argument that works only in the USA. Racial discrimination in road traffic enforcement is (as far as I know) not a major problem where I live. Furthermore, fatal shootings in traffic stops are uncommon in most other jurisdictions. It is really the US police culture that is singled out by that argument. That said, other forms of inequality arise in other jurisdictions and it's possible that these are reflected in how the laws are enforced. One final point, which is related to Flanigan's argument, is that if we assume seatbelt mandates are enforced through fines, then all flat rate fines impose disproportionate costs on poorer people. But is this a reason to abandon this form of punishment? Furthermore, it is possible to create a system of progressive fines for road traffic violations. Some European countries, for instance, have a system of fines calculated as a percentage of income.
The sixth argument is that paternalistic laws of this sort treat citizens like children and it is insulting and disrespectful to be treated like a child. Flanigan uses some analogies to make the case. She argues that it would be humiliating for a teacher to force a student to correct an addition mistake; it would be degrading for doctors to force patients to accept treatment. Her point is that there is an important moral distinction between pointing out someone’s error and forcing them to correct that error. It might be okay to point out to people that they are taking excessive risk by not wearing a seatbelt, but forcing them to wear one is going to far. She also argues that there is also some hypocrisy and inconsistency in the enforcement of such laws as they assume citizens are incapable of balancing risks and making compromises when public officials do this all the time, e.g. motorbikes are much more dangerous than cars and yet are routinely licenced.
There are several questions that can be raised about this argument. One is whether offensiveness/insult is an appropriate guide or restraint on legitimate criminalisation? Is it always insulting and offensive to be treated like a child? Are we not sometimes grateful when people force us to correct our errors? Furthermore, public administration is always complex and sometimes contradictory (e.g. drug laws versus alcohol laws). Is apparent contradiction/hypocrisy a good reason to object to a particular law (if that law is otherwise well justified)?
3. The Negative Defence of Premise (1): Can Paternalism be Justified?
Flanigan also offers a negative defence of premise (1) by considering potential objections to the premise. These arguments each try to offer justifications for paternalistic interventions in some cases.
Th first objection to premise (1) is to claim that we should be less worried about paternalistic interventions when the choices affected by them are relatively trivial or unimportant. The argument then would be that the preference for riding unbelted is trivial (not an important freedom) and so less worthy of respect.
Flanigan has three rebuttals to this argument. First, she says it doesn’t matter if it is trivial; the interference required to enforce it is non-trivial and we have a non-trivial reason to reject such interference. Second, she argues that some people may highly value the freedom to make the choice, even if they choose to buckle up all the time. Why discount or presume their subjective preference to be trivial? Who are we to make that judgment? Third, she argues that maybe we have developed an adaptive preference for riding belted (like being brainwashed) and if more people exercise the right to ride unbelted we wouldn’t see it as trivial anymore.
To my mind, this third rebuttal is the most interesting and it is the one I often get students to reflect on in class. It is always worth asking whether we are victims of status quo bias when it comes to a tolerance for certain laws or interferences. What seems trivial or well-justified to us right now might not seem so trivial or well-justified to future generations.
The second objection to premise (1) is that if the paternalistic intervention ultimately promotes autonomy, it can be justified (we tolerate the intervention if it serves the greater good of autonomy overall). The argument then would be that seatbelt mandates do this by protecting us from a potentially deadly choice.
Flanigan has two rebuttals to this. First, she highlights an inconsistency potentially inherent in it. She points out that if we think people have a right to die, or to choose to die, we should think they have a right to ride unbelted. How persuasive this is depends on whether you think people have a right to die. Second, and perhaps more convincingly, she uses a slippery slope argument. She says that if this argument worked, it would also justify other, seemingly excessive, interferences with choice, e.g. mandated diet and exercise, visits to the doctor etc. I sympathise on the slippery slope point, but I wonder whether there is there an important difference between genuinely self-regarding decisions, such as right to die, and driving without a seatbelt which, given the nature of driving, always has the potential to harm others. Again, this potential for harm to others seems to be the main stumbling block for Flanigan's argument.
The third objection to premise (1) is that people can consent to paternalistic interventions if, on balance, they promote long-term, higher order interests over short-term immediate preferences. The idea then is that seatbelt mandates to promote those long-term higher order interests by keeping us alive (or reducing the risk of death).
Flanigan offers two responses to this. The first is that, even if we did consent to such interventions, we would have a right to change our minds. She uses an analogy with joining a Weight Watchers programme. Imagine if we forced someone to continue with a weight loss programme that they really didn’t like. Second, she points out the obvious: we typically don’t get to consent or opt-in to seatbelt mandates. They are forced upon us. So this argument seems moot (of course, this leads to its own slippery slope since we don't consent to most laws).
4. Defending Premise (2): Don't Seatbelt Mandates Prevent Harm to Others?
Finally, we move on to Flanigan's defence of premise (2). As already noted, this is where, in my class discussions, most students tend to object. She considers two potential objections to that premise. The first is slightly weaker, in my view, but still interesting. The second is where most people have problems.
The first objection is that the decision to ride unbelted is not fully autonomous because it is irrational. Why so? Because it is shortsighted and not based on a proper understanding of the risks involves. The idea then is that irrational decisions need not be respected and can be paternalistically overruled.
Flanigan offers four responses to this argument. The first is that the decision to ride unbelted may be undergirded by a rational preference for liberty/to be free from legal penalties. The second is that we may have rational grounds for favouring the decision to reserve for ourselves the right to decide irrationally. This is a convoluted idea, but Flanigan offers a simple analogy: falling in love. Love is often irrational yet we value the freedom to choose who we love. The third response is to appeal to another slippery slope. If we accepted the right to overrule irrational choices, this would justify many other, seemingly excessive, interferences, e.g. dietary preferences are often irrational yet no one thinks you should be forced not to eat another slice of cake. The fourth response is that, paradoxically, the apparent effectiveness of mandate laws is evidence for the autonomous nature of the choice to ride unbelted (b/c it shows people are swayed, rationally, by incentives).
Each of these rebuttals raises a host of issues that are worthy of further discussion. There isn't the space or time to do so in this post. One obvious point I would raise is whether the slippery slope really applies in this scenario. Are there not important differences between the levels of autonomy/irrationality involved in different decisions? Also, are there not important difference between activities that are wholly or largely self-regarding (e.g. diet) and activities that necessarily entail some interaction with or potential harm to others (e.g. driving on a public road)?
The leads us, finally, to the main objection to Flanigan's argument. This objection maintains that the decision to ride unbelted is harmful to others and so falls outside the scope of the normative principle stated in premise (1). In particular, the argument is that the decision to ride unbelted imposes harm, or a significant risk of harm, on (i) other passengers; (ii) traumatised bystanders (of road traffic accidents); and (iii) society at large due to medical costs and so on.
This is, obviously, a complicated argument since there are different kinds of harm to others at stake. In my view (and the view of most students I have discussed this paper with) the harm to other passengers tends to be the most significant objection to Flanigan's argument. Many years, in Ireland, there was a famous road safety ad which depicted, graphically, the potential impact of an unbelted rider on other passengers in a road traffic accident. You can watch it here. This ad has been imprinted on my memory and so probably biases my view on this matter.
But an ad is not reality. What is that the actual increased risk to other drivers? Flanigan cites figures from one study suggesting that the increased risk (of death) is only 20%. She then argues that this increased risk is comparable to (and perhaps less than) other risks that we do not legally protect, e.g. the risk of driving with an inexperienced driver, or driving late at night. She also suggested that, in many cases (but not all) the passengers consent to the additional risk by agreeing to ride in a car with an unbelted driver.
I find these arguments unpersuasive and most people I discuss the argument with tend to agree. For one thing, it is not clear that a 20% increased risk of dying is trivial, nor that this figure is the correct one. You can find other studies suggesting that the risk is much higher, and that death alone is not the only risk to be factored in: there is also an increased risk of other kinds of injury. It is probably true that we are not consistent in how we legally protect people from the risks associated with driving. But, as noted above, inconsistencies are rife in legal policy: their presence, alone, does not mean that a particular law is unjustified if good arguments can be offered in support. There is also the relative ease of stipulating and enforcing a seatbelt mandate vis-a-vis other kinds of mandate (e.g. not driving late at night), and the different costs and benefits associated with those other potential mandates. Finally, on the consent point, it seems an implausible reading of human psychology to suggest that people can easily refuse to drive with an unbelted passenger. For young men, for instance, peer pressure and a sense of machismo might make it hard for someone to act on their true preferences. The mandate provides a useful fallback for such people. Similarly, there are many people who cannot easily choose who they ride with: children, elderly people and so on (Flanigan acknowledges this, to be fair).
Flanigan's objections to the relevance of the other two categories of harm are more plausible to me. She argues that potential psychic distress to third parties others is not a good reason to interfere with an autonomous choice. That seems right to me. And on the healthcare costs, she argues that if people have a right to healthcare, then they cannot be denied this right simply as a consequence of making bad choices that make it more likely they will need to exercise that right. By way of analogy she argues that protestors do not waive their right to police protection simply because they protest the police. Furthermore, if people do not have a right to healthcare, then we have no duty to pay for their treatment, so they do not impose any additional cost on us. If we treat them, it is a supererogatory act.
That's the end of this summary of Flanigan's paper (along with some critical commentary of my own). As I say, the paper is thought-provoking. It raises a number of interesting issues in moral and legal theory and thus provides good fodder for classroom discussions, even if most people don't agree with it.